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What is the legal basis for modern U.S. antitrust law? The Supreme Court has long rested its doctrinal stewardship of the Sherman Act on the notion that it is a “common-law statute,” with an implicit delegation to the Court to tinker with the metes and bounds of antitrust law as prudence requires. This Article interrogates the foundations of the “common-law statute” concept—and finds it lacking a solid foundation. Instead, this Article proposes that the Supreme Court’s Article III equity power is the better basis for understanding what has happened with antitrust—and what might happen with it in the future. [ABSTRACT FROM AUTHOR]

Through the rearview mirror of five state antitrust challenges, this Article provides a tour of state antitrust enforcement—from small cases brought by single states that made a splash, to cases so pivotal to antitrust practice that it seems as if there is nothing left unknown about them. The author discusses state challenges in Microsoft, Ovcon, Namenda, T-Mobile/Sprint, and Vyera, and provides a behind-the-scenes look at the impacts that these cases had on state enforcement. This Article also provides insights into how these cases affect current state antitrust litigation, and what observers might expect from the road ahead. [ABSTRACT FROM AUTHOR]

The Neo-Brandeisian movement seeks to unravel the bipartisan, decades-long consensus on antitrust enforcement premised on the consumer welfare standard. In recent years, seemingly disconnected developments signaled the coming attack on this consensus. A flood of changes from new FTC leadership beginning in 2021 confirmed that the consensus was under attack. These changes include policies meant to increase legal uncertainty around merger activity, consolidate power in the office of the Chair, and ignore the expertise of the FTC’s career staff. Many observers respect and analyze Neo-Brandeisian proposals as part of a sincere and coherent attempt to return the FTC to the early decades of antitrust enforcement. But research into political and economic theories reveals that the Neo-Brandeisian worldview draws heavily on historical concepts outside the antitrust field. [ABSTRACT FROM AUTHOR]

The article argues how mergers of business firms may violate the antitrust laws when they threaten to lessen competition in the U.S. Topics discussed include general welfare and consumer welfare standards; the burden shifting framework in which the government or private plaintiff challenging a merger must first establish a prima facie case of illegality; and merger litigation under the Merger Guidelines.

The article provides an overview of various institutions to frame the larger institutional interrelations for comparative institutional analysis. It examines mergers as a case study of how one might apply antitrust institutional analysis across these different kinds and levels of antitrust institutions using survey data of antitrust practitioners on merger issues. It also states that it presents a mechanism to better weigh the potential advantages to antitrust institutional design.